We have a query from and employee claiming superannuation shortfalls whilst on Workers Compensation Ms K is a Casual who went of sick, whilst on Jobkeeper During the period until 17th January, she was receiving her full entitlement to Jobkeeper, even though she worked zero hours since 7th December. This she was entitled to As no physical hours were worked, we ceased superannuation payments, as we only paid superannuation contributions for the physical hours she worked for the Association during Jobkeeper payments. ( we did pay superannuation for next 2 fortnights incorrectly and these were then reversed as no hours were actually worked, but jobkeeper was still paid) Ms K then went on Workers Compensation from 17th January to present. During this time, her payments were made direct to her from EML and not through the association, therefore we had no visibility of salary/wages/payments made, and accordingly we did not make any superannuation contributions Ms K is now claiming for superannuation payments some 12 months later I attach some email correspondence as well as references she has quoted in her claims From: K Sent: Dear As you are aware I have been absent from work since December 2020 and have been receiving Workers Compensation payments since the last Jobkeeper payments I received from the Employer for the fortnight ending 17 January 2021. In accordance with the Clerks – Private Sector Award 2020 Section 20.5, the superannuation guarantee payments should have continued to be paid into my ) Superannuation account, however, this has not occurred since the fortnight ending 6th December 2020. According to my payslips, there were two reversals and non-payment of Superannuation by the Employer for three pay periods being: 7 Dec 2020 to 20 Dec 2020 $71.25 super reversal 21 Dec 2020 to 03 Jan 2021 $71.25 super reversal 4 Jan 2021 to 17 Jan 2021 Zero - should have been $61.75 From 18 Jan 2021 I have been receiving worker compensation payments from EML- Icare, however, no superannuation has been paid by the Employer for these payments either. The Workers Compensation payments to the 30 June 2021 should have resulted in payments of Superannuation, with payments made from the 1st July now attracting 10% Superannuation Guarantee. Yours Sincerely K Response from our Bookkeeper Hi K, Please see information below as per your superannuation query. Under the Accident Compensation Act, Work Cover picks up the Super contributions of injured workers once they have been on weekly benefits for one year (52 weeks), and continues to pay them. As no salary or wages have been paid by the Employer, I suggest you contact your caseworker to clarify this to you. Kind Regards Bookkeeper Response back from Ms K Hi bookeeper I have taken legal advice regarding my super and have been clearly advised that my employer has an obligation to pay. The section you referred to is about Workcover payments after 52 weeks. I have not been on Workcover for more than 52 weeks. You have also ignored the Award that applies to my employment which clearly notes the employer is liable to pay superannuation whilst I am on Workcover (see clause 20.5 of the Clerks- Private Sector Award 2020) . Regards K We contacted EML(icare) Workers Compensation case officer in Ms K workers Compensation case, and received the following response. NB the Employer does not receive or make any payments to Ms K From: eml Sent: Monday, October 25, 2021 4:04 PM To: Subject: Ms K superannuation Hi there, Thanks for your time on the phone. As discussed, below is the email I sent to Ms K re: super. “My understanding is that if EML is making wage payments directly to a worker we deduct the tax and it is up to them to make super contributions. When we make payments to the employer then we send the payment to them as a gross amount and it’s up to them to take the tax out and make super contributions from those wages. _____________________________________________ | Case Management Specialist The sections referred to in Ms K response are Clerks Private sector award 2020 https://awardviewer.fwo.gov.au/award/show/MA000002#P598_44174 20.2 Employer contributions An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee. 20.3 Voluntary employee contributions (a) Subject to the governing rules of the relevant superannuation fund,an employee may,in writing,authorise their employer to pay on behalf of the employee a specified amount from the post-taxation wages of the employee into the same superannuation fund as the employer makes the superannuation contributions provided for in clause 20.2. (b) An employee may adjust the amount the employee has authorised their employer to pay from the wages of the employee from the first of the month following the giving of 3 months’written notice to their employer. (c) The employer must pay the amount authorised under clauses 20.3(a) or 20.3(b) no later than 28 days after the end of the month in which the deduction authorised under clauses 20.3(a) or 20.3(b) was made. 20.5 Absence from work Subject to the governing rules of the relevant superannuation fund,the employer must also make the superannuation contributions provided for in clause 20.2 and pay the amount authorised under clauses 20.3(a) or 20.3(b): (a) Paid leave—while the employee is on any paid leave. (b) Work-related injury or illness—For the period of absence from work (subject to a maximum of 52 weeks) of the employee due to work-related injury or work-related illness provided that: (i) the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with the statutory requirements;and (ii) the employee remains employed by the employer. From this, it seems that 20.3 does not apply as there are no volunteer employee contributions Section 20.5 (b) (i) only relates if the employee is receiving their payments (workers Compensation) directly from the employer. This is not the case and appears to agree with the Workers compensation case officers analysis, and advice given to Ms K Could you please outline our obligations for payment of Superannuation to Ms K and outline if we are correct in our actions, or what we need to do to meet our obligations, if any thanks
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